may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Lee Burnett,
Filed March 23, 1999
Redwood County District Court
File No. C1-97-322
Michael A. Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and
Michelle Dietrich, Redwood County Attorney, Courthouse, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)
John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Following a jury trial, appellant James Lee Burnett was convicted of three counts of aiding and abetting a controlled substance crime and three counts of conspiracy to commit a third-degree controlled substance crime under Minn. Stat. §§ 152.023, subd. 1(1), 152.096, 609.05 (1996). The offenses underlying Burnett's convictions occurred in Redwood County on three separate dates, November 3, November 5, and November 25, 1996. On each date, Burnett acted as a "middle man" and assisted an undercover officer in purchasing 1.5, 3.5, and .5 grams of cocaine, respectively.
In this appeal, Burnett claims that the prosecutor committed prejudicial misconduct when she stated at the end of her closing argument: "Don't let him get away with it. Don't let him get away with helping sell drugs, sell cocaine in Redwood County." We affirm because when viewed in the context of the whole trial, the prosecutor's comments did not deny Burnett a fair trial.
By neither objecting to the prosecutor's statements nor seeking a curative instruction, Burnett effectively "waive[d] his right to challenge [the] prosecutor's closing argument." State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997); see State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (while court may reverse conviction despite defendant's failure to object if prosecutor's misconduct was "unduly prejudicial," defendant's failure to object necessarily implies that comments were not prejudicial). In any event, attorneys for both sides addressed the proper burden of proof in their closing arguments and the jury instructions stated the proper burden of proof. Thus, the isolated comments of the prosecutor, which were made at the end of a three-day trial, had little or no effect on Burnett's trial. See State v. Buggs, 581 N.W.2d 329, 341-42 (Minn. 1998) (where verdict "surely" not attributable to prosecutorial misconduct, defendant not entitled to new trial); Griese, 565 N.W.2d at 428 (where misconduct was "limited" and did not permeate closing argument, court will not reverse defendant's conviction); State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995) (although incorrect statement of burden of proof, prosecutor's repeated statement that jury's role was to "determine if the evidence was sufficient to convict" did not deny defendant fair trial).
In his pro se brief, Burnett echoes the prosecutorial misconduct claim made by the public defender and also argues that the prosecutor committed misconduct by failing to allow him "to submit information about the 1997 interview into evidence at trial." The decision whether to admit evidence at trial is made by the court, not the prosecutor. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). Thus, Burnett's evidentiary claim is without merit.